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May 2, 1997


Appeal from the Circuit Court of Massac County. No. 87-CF-71. Honorable Terry J. Foster, Judge, presiding.

Presiding Justice Kuehn delivered the opinion of the court. Maag, J. and Goldenhersh, J., concur.

The opinion of the court was delivered by: Kuehn

PRESIDING JUSTICE KUEHN delivered the opinion of the court:

Our founding fathers enshrined certain freedoms into the constitution. Those freedoms are our birthright, a legacy passed down from our ancestors. Although we tend to take them for granted, the liberty they embody and guarantee is the strength of our democracy. Liberty has been our nation's call to arms. For some of us, liberty's guarantee has not come easy.

Defendant was drafted into the Army in 1968. Thereafter, he was sent to war in South Vietnam. In 1970, he was transported home. He spent six months in an Army hospital healing wounds sustained from enemy engagement. Battlefield scars are not the only evidence of his bravery. He returned home with two Purple Hearts, the Bronze Star, and the Army Commendation Medal for meritorious achievement in combat. He returned home a war hero. That home is now an Illinois prison cell.

This is a case where a man who placed his life in harm's way for the sake of his country's values, who stood up for liberty's promise, did not enjoy its full measure. His trial differed markedly from trials enjoyed by most defendants. He was not allowed to confront the witnesses against him or to participate in his defense. Such rights, traditional to our notion of fair play, were bypassed.

Seven years ago, a trial was conducted in defendant's absence. He was convicted and sentenced to a 10-year prison term. According to the State, defendant was afforded every right traditionally afforded the criminally accused. If those rights were lost, it was defendant's fault. According to the State, defendant elected not to avail himself of his rights by willfully failing to attend trial.

Defendant now claims that his failure to appear for trial was not his fault and was due to events beyond his control. He seeks an opportunity to present evidence to establish that he did not willfully avoid trial or voluntarily surrender constitutional rights associated with trial presence.

This appeal asks us to overturn a summary dismissal of defendant's postconviction petition. The petition, supported by defendant's affidavit, asserts that a breakdown in travel plans prevented defendant's timely appearance for trial. Defendant seeks an opportunity to be heard on why he failed to attend his trial. He ultimately hopes to prove that his conviction was a product of an unjustified forfeiture of his constitutional rights.

Initially, we note that the hearing defendant seeks is readily available under the same statutory provisions that permitted the trial to be conducted in his absence, while the hearing he seeks in this appeal may not withstand a motion to dismiss the petition. See 725 ILCS 5/115-4.1(e) (West 1992). Our decision is confined to the order from which defendant appealed. The summary dismissal order mounts a question of whether defendant's postconviction petition is frivolous and patently without merit. For the reasons set forth in this opinion, we reverse the trial court's summary dismissal and remand for further proceedings.

Defendant and his brother, James, were arrested in the summer of 1987. Defendant was working for a Florida company that contracted to deliver a car from Florida to its Chicago owner. En route to Chicago, defendant was stopped for speeding in Massac County. The State police were primed to suspect drugs under the circumstances of defendant's trip. They asked for consent to search the car and its belongings. According to the troopers, defendant, free to resume his trip and leave their presence, chose to execute a consent to search. The search engaged several troopers and their dog. Defendant was asked to drive the car to a nearby service station, where it was placed on a rack and its undercarriage was examined. A compartment housing a package of cocaine was found under the car.

Defendant disavowed any knowledge of the compartment or the drugs it contained. The defendant's brother, the car's owner, and a Florida businessman also denied knowledge. Of the various suspects whose ignorance was in question, defendant was the only one empowered to prevent detection of the drugs. Defendant's ignorance was supported by his willingness to allow the search when free to drive away.

On June 25, 1990, he failed to appear for his scheduled trial. A decision was reached to start without him. He claims that the judge was told that he was unavoidably delayed. He claims that the judge was asked to delay the trial until he could get to court. He claims that he arrived two days late only to learn that his trial was over, his defense went unheard, and the jury was about to deliberate his fate.

On June 27, 1990, fearing the outcome of a trial he did not attend, defendant violated his bail conditions and fled the jurisdiction of the State of Illinois. He remained a fugitive from justice until 1993. He was discovered living an unremarkable life near his hometown of Clinton, Iowa. In August of 1993, he became a prisoner of the State of Illinois. He currently serves a 10-year prison term imposed on the verdicts returned in his absence.

Defendant has no idea of what happened at his trial. He lacks any firsthand knowledge of what happened. Moreover, he cannot consult a record of what happened. There is no report of proceedings. The trial cannot be chronicled because the notes taken to preserve what happened have disappeared.

Presumably, the judge determined, upon an affirmative tender of substantial evidence from the State, that defendant willfully avoided trial. See Ill. Rev. Stat. 1989, ch. 38, par. 115-4.1. Presumably, trial proceeded on the premise that defendant voluntarily surrendered his rights as a matter of choice.

In August of 1994, defendant petitioned for postconviction relief. The petition was summarily dismissed as frivolous and patently without merit.

Defendant's appeal tenders two reasons for the reversal of the summary dismissal. One of those reasons is ineffective assistance of postconviction counsel. Defendant raises the issue of counsel's failure to pursue a collateral attack of the conviction by a motion ...

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